Maternity Discrimination

A recent survey of the Equality and Human Rights Commission (EHRC) into attitudes of employers towards pregnancy and maternity included the following findings:

– 36% of private sector employers felt it was reasonable to ask women about their future plans to have children during the recruitment process

– 59% agreed that women should have to disclose whether they are pregnant in the interview process

– 46% think it is reasonable to ask a woman if she has children in the interview process.

Considered against the legal framework of pregnancy and maternity discrimination, these findings are particularly concerning.

There are two main types of pregnancy and maternity discrimination – unfavourable treatment and victimisation. Victimisation works in broadly the same way as for discrimination based on other protected characteristics whereas there are some unique elements to unfavourable treatment that are worth exploring.

Employees are protected against unfavourable treatment because of pregnancy or maternity. This means an employee or job applicant must not be disadvantaged because of their pregnancy or maternity. For example, they must not:

be subjected to unfair treatment because of pregnancy or maternity

suffer disadvantage because of pregnancy or maternity through the employer’s policies, procedures, rules or practices

suffer unwanted behaviour because of pregnancy or maternity.

Asking a woman if she has plans to have children during the recruitment process can never be warranted. Given that you cannot treat a pregnant woman less favourably due to her pregnancy, all the recruiter does by asking such questions is expose their employer to risk. For example, if a pregnant candidate is asked about pregnancy at their interview and is not selected for the role, the burden of proof would undoubtedly shift to the employer to prove that they did not discriminate. Many large employers ensure that interviewers have recruitment training to ensure that they do not expose the company to such risks. Given these findings, it would seem that many more employers would be best advised to do the same.

However, it is not just the recruitment process that can result in negative treatment of pregnant women. Other claims can arise because of unfair treatment in a redundancy process whilst on maternity leave; mishandling the return to work and failing to allow a woman to return to her old job after maternity leave; and failing to appropriately manage flexible working requests.

Focusing on one of the most common challenges, namely the management of flexible working requests. As for all employees, there is no automatic right to switch to part-time working. However, should an employer refuse to allow an employee to work part time after having a baby, they are likely to place themselves at risk of indirect sex discrimination. In addition, employers also have a legal duty to reasonably consider all requests by employees with at least 26 weeks service to move to flexible working.

An increasing number of employers have moved beyond these risks and realised that they can differentiate themselves in the market by ensuring that they value and recognise the contribution of their pregnant staff. If a female worker does not return from maternity leave, an employer is faced with recruitment and training costs to replace them but they also potentially lose a very talented, loyal employee. Therefore, wise employers are increasingly focused on retaining their pregnant staff, encouraging them to return from maternity leave and ensuring that they suffer no disadvantages from doing so. An increase in schemes which specifically target women who did not return from maternity leave and encourage them to return to the workplace can also be seen across certain industries.